Gardner v. Webber

Putnam J. subsequently drew up the opinion of the Court. This is assumpsit upon a promissory note, by the indorsee against the maker. The defendant has properly pleaded the general issue, and the statute of limitations. He has pleaded two other pleas, both admitting the making of the note, but stating substantially that it was given as an indemnity against certain indorsements made or to be made by the promisee for the accommodation of the maker, and that neither the promisee nor the plaintiff has been damnified. The plaintiff objected to those pleas as amounting to the general issue, and the court rejected them. Whether the rejection was right, is the question. The second rule of the Regulas Generales, 16 Mass. R. 370, after speaking of double pleading, goes on to prescribe, “ that if 3.ny one or more of the pleas so.filed shall appear to the court, to be unnecessary or improper, the same will be struck out, at the motion of the plaintiff or demandant.” That was the old rule of the common law. Warner v. Wainsfort, Hob. 127. The remedy is properly by motion, [412] and it is addressed to the sound discretion of the judge. He may a^ow or he may reject the motion, as shall seem to be proper or necessary. The rejection is not made merely because the facts, which are set forth in the plea, would not constitute a sufficient defence, but because it might be unnecessary to mcumber the record with a long statement of facts which might as well be proved to the jury under the general issue. Now the pleas under consideration went to a denial of the plaintiff’s right to recover, at the time when he commenced his action. “ Every thing (says Mr. Lawes, in his Pleadings in Assumpsit, 525) may be given in evidence under the general issue [of non assumpsit] which disaffirms the contract, or which shows that it was not to be performed at the commencement of the action. These pleas fall precisely within the latter clause of the rule, viz. that when the plaintiff sued his action, he had no right to recover. We all think, that they were unnecessary, inasmuch as the facts might be given in evidence under the general issue, and also because they unreasonably incumbered the record. The ruling of the judge at the trial was right. The next question is, whether the suit was commenced within six years after the cause of action arose. The writ bears date on April 15, 1834, one day before the expiration of six years from the date of the note, but it was not served until the 24th of the same April, eight days after the expiration of six years from the date of the note. The question then is, whether the date or the service of the writ is the commencement of the action. It has certainly been understood in Massachusetts, that the day of the date was the commencement of the action. It is prima facie evidence only, and admits of evidence to rebut the presumption arising from the date ; but until rebutted, the presumption is to prevail, that the true date appears ; and that date is the commencement of the suit. In the case of Ford v. Phillips, 1 Pick. 202, the Court speak of a fact which took place “ after the action was commenced and before the writ was served.” In that case the promise was made while the defendant was an infant. A new promise was made by him after he became of age ; but it was made while the writ was in the [413] officer’s hands. But it was held, that as the action was commenced before the new promise was made, it could not be maintained. So in Badger v. Phinney, 15 Mass. R. 364, this Court held, that the writ may be considered as purchased at any moment of the day of its date which will most accord with the truth and justice of the case. In the case at bar the presumption is confirmed by the dl rect evidence, that the writ was purchased on the day it bears date. The ruling of the judge was right, as to this point. So the case is not within the statute of limitations. The only question which remains to be considered is, whether the evidence reported is sufficient to enable the plaintiff to recover. Prima facie the note was for a valuable consideration. It is for the defendant to disprove it. Now it is proved, that the indorsements which the payee made for the maker, were made after the note was given, and it has been contended by the defendant, that there was no consideration existing at the time the note was given, and so the note was void. But the proof is, that the note was given to secure the payee from indorsements which he should thereafter make for the maker. And it is further proved, that the payee went on to perform his part of the contract, and did indorse to a great amount for the maker, relying without doubt upon the security which he had given. In the case of Train v. Gold, 5 Pick. 384, the Court said, that “ it was not necessary that the consideration should exist at the time of making the promise ; for if the person to whom the promise was made, should incur any loss, expense, or liability, in consequence of the promise and relying upon it, the promise thereupon becomes obligatory.” And a case is put by way of illustration of the position, which is very much like the case now under consideration. “ Thus if A promises B to pay him a sum of money if he will do a particular act, and B does the act, the promise becomes binding although B at the time of the promise does not engage to do the act. In the intermediate time, the obligation of the contract or promise is suspended ; for until the performance of the condition of the promise, there is no considertaion, and the promise is nudum pactum ; but on the performance of the condition by the promisee, it is clothed with [414] a valid consideration, which relates back to the promise, and it then becomes obligatory.” This seems to be decisive for the plaintiff. The giving collateral security to indemnify against liabilities to be incurred thereafter, is liable to some suspicion on the ground of fraud , but there is no objection to such a transaction if it be explained, and proved to be fair. In the case at bar no fraud is suggested. And the liabilities were incurred long before the claims of the creditors arose. As the note was indorsed as collateral security by the payee to the plaintiff, the defendant has been properly admitted to give in evidence such matters as would have been permitted, if the suit had been in the name of the payee. And it appears, that the liabilities assumed by the payee for the maker, by indorsements for his accommodation, were to an amount exceeding the note sued for in this action. The plaintiff is entitled to recover as much as the payee would be. ' And he would not be entitled to recover upon his mere liability, but such sum as he shall prove that he has actually paid in consequence of his liability, before the judgment shall be rendered. This was the rule adopted lately in Essex, in the case of Little v. Little, 13 Pick. 426. The judgment will be for the plaintiff in this case accordingly. And in the writ of entry upon the mortgage between the same parties, the demandant will be entitled to a conditional judgment, as upon a mortgage, redeemable by the payment of the amount ascertained to be justly due in the action upon the note.